U.S. Federal & state "defense of marriage
acts" (DOMA) & constitutional amendments
From the founding of the United States until 1996, there were two foundational principles governing marriage:
- The District of Columbia and the individual states defined who is eligible to marry within their jurisdiction, and
- The federal government granted benefits, obligations and protections to all legally married couples and to their children anywhere in the U.S.
These two U.S. foundational principles were suddenly terminated by Congress in 1996 with the passage of the federal Defense of Marriage Act (DOMA). Section 3 of that act states that even if a same-sex couple is legally married in the District of Colombia or in one of the growing numbers of states that have legalized same-sex marriages (SSMs), the federal government will not recognize these marriages. As far as federal government programs are concerned, same-sex married couples are viewed as "legal strangers" with the status of mere roommates. They and their children are denied the benefits and protections of 1,138 federal laws that are automatically given to married opposite-sex couples.
The legislatures of many states have passed laws specifically banning same-sex marriages. Some have passed amendments to their state constitution declaring that same-sex marriage is banned and that they would not recognize same-sex marriages legally solemnized in other jurisdictions as valid.
The constitutionality of these laws and amendments has been challenged in recent court cases. As of early 2012-NOV, recent lawsuits have resulted in rulings by various federal district courts and two U.S. Courts of Appeal. All have agreed that the federal DOMA law is unconstitutional.
Three DOMA cases have been appealed to the U.S. Supreme Court. The court is not required to hear all the cases appealed to it. The court is not even required to explain their reasons for refusing to hear a case.
The Justices announced on 2012-DEC-07 that they have granted certiorari to the anti-DOMA case originally launched by Edith Windsor of New York in District Court and later appealed to the 2nd U.S. Circuit Court of Appeals. Both courts determined that the federal DOMA law is unconstitutional, "Granting certiorari" means that the Supreme Court will hear the case. This has been scheduled for late in 2013-MAR. A decision is expected about 2013-JUN.
Past voting patterns make it quite possible that the four conservative strict constructionists on the Court will uphold DOMA's constitutionality, while the four liberals will find it unconstitutional. Justice Kennedy may well cast the deciding vote, leading to a 5:4 ruling. Whether the decision will be for or against the constitutionality of the federal DOMA law is impossible to predict.
The court also granted certiorari to the Prop 8 case in California. This involves a constitutional challenge to a referendum held on 2008-NOV in which the public banned future same-sex marriages in the state.
Topics covered in this section:
Copyright © 1995 to 2012 by Ontario
Consultants on Religious Tolerance
Originally written: 1995-SEP-11
Latest update: 2013-JUL-28
Author: B.A. Robinson